P L D 1939 Supreme Court 633 (PLP)

?(b) Penal Code (XLV of 1860)‑‑ ‑‑‑S.109‑‑Constitution of Pakistan (1973), Art. 203‑F‑‑Repugnancy to Injunctions of Islam‑‑Provision of 5.109, P.P.C. so far as it makes an abettor in case of murder and other offences against human body liable to the same punishment as is prescribed for the murder or for such offences regardless of the various degrees of abetment is repugnant to Injunctions of Islam. (c) Penal Code (XLV of 1860)‑‑ ‑‑‑S.54‑‑Criminal Procedure C‑cede (V of 1898), Ss.401, 402, 402‑A & 402‑B‑?Constitution of Pakistan (1973), Art.203‑F‑‑Repugnancy to Injunctions of Islam‑?Provisions of S.54, P.P.C. and Ss.401, 402, 4(12‑A & 402‑B, Cr.P.C. in so far as they empower the Central Government or a Provincial Government to commute the sentence of death in case of Oatal‑al‑amd or Jurh‑ul‑amd or in any other offence violating the Huqooq‑ul‑Ibad arc repugnant to Injunctions of Islam. (d) Criminal Procedure Code (V of 1898)‑‑ ‑‑‑S.345‑‑Constitution of Pakistan (1973), Art.203‑F‑‑Repugnancy to Injunctions of Islam‑‑Provision of S.3‑

15. Cr.P.C. in so far as it does not include some of tile offences against human body in the table of compoundable offences, is repugnant to Injunctions of Islam. (e) Criminal Procedure ('ode (V of 1898)‑‑ ‑‑‑S.381‑‑Constitution of Pakistan (1973), Art.203‑F‑‑Repugnancy to Injunctions of Islam‑‑Provision of 5.381, Cr.P.C. in so far as it does not provide that the heirs of the deceased in a case of murder may pardon the offender or enter into a compromise with him even at the last moment before execution of sentence, upon which execution cannot take place, is repugnant to Injunctions of Islam. (f) Criminal Procedure Code (V of 1898)‑‑ ‑‑‑Ss.337 to 339‑A‑‑Constitution of Pakistan (1973), Art.203‑F‑‑Repugnancy to Injunctions of Islam‑‑Provisions of Ss. 337 to 339‑A, Cr.P.C. in so far as they permit tender of pardon to an offender without reference to and without permission of the victim wherever this is required under the Injunctions of Islam to case of Jurh and of the heirs of the victim in cases of Qatl are repugnant to Injunctions of Islam. Per Pir Muhammad Karam Shah, J.; Muhammad Afzal Zullah and Nasim Hasan Shah, JJ agreeing‑‑ Per Per Shafiur Rahman, J.‑‑ Section 133 of the Evidence Act, 1872 and sections 337 to 339 of the Code of Criminal Procedure, 1898 prescribe the conditions and the offences for which an offender can be made an approver and the extent and the manner in which his testimony may be utilized at the trial. The situations, the conditions, the offences and the requirements justifying reception of approver's testimony are all exceptional, bordering on necessity and demands of public policy. The various provisions of the Evidence Act with which its section 133 is to be read establish that whilst it is not illegal to act upon the uncorroborated evidence of an accomplice, it is a rule of prudence so universally followed as to amount almost to it rule of law that it is unsafe to act upon an evidence of an accomplice unless it is corroborated in material respects so as to implicate the accused. The evidence of approver where alongwith other evidence is found to be satisfactory, it should be sufficient to convict and sentence an offender under Ta'zir, for which ample scope exists even where Injunctions of Islam provide for the punishment. At present, the whole of the Evidence Act stands repealed and has been re‑enacted as Qanun‑e‑Shahadat, 1984. Article l66 of this Order repeals the whole of the Evidence Act. There is, therefore, now left no occasion at present to strike down section 133 of the Evidence Act which has ceased to be on the land. The re‑enacted provision about an accomplice is Article 16 of Qanun‑e‑Shahadat which is differently worded. This Article can be struck down only after the proper procedure with regard to it has been followed, as provided in the Constitution. As regards the rigidity in respect of admissibility of evidence and its quality, there is no injunction of the Holy Qur'an and the Sunnah of the Holy Prophet and the one reproduced in tile judgment of Pir Muhammad Karam Shah, J. relates to infliction of punishment of Hadd and can on that score be distinguished. In the absence of any such injunction of Islam the test of repugnancy cannot be applied cm the basis of what the jurists have evolved as the rule of evidence for convicting a person. In the matter of Ta'zir, the rules for receiving, appreciating and rejecting evidence can all be controlled by law adjusted to the situation, to the crime, to the offender and to the social atmosphere in which the laws have to he applied. . Under the Anglo‑Saxon Jurisprudence, Society represented by State, holds a direct control over serious offences concerning person and property. The: launching of the prosecution, the withdrawal of the prosecution, reprieve and pardon after conviction and sentence by the State and its functionaries are all manifestations of this feature. The victim of the crime or his heirs have no say in the matter. Under the injunctions of Islam this is not so at least in respect of offences against person. In Islam the individual victim or his heirs retain from the beginning to the end entire control over the matter including the crime and the criminal. They may not report it. They may not prosecute the offender. They may abandon prosecution of their free‑will. They may pardon the criminal at any stage before the execution of the sentence. They may accept monetary or other compensation to purge the crime and the criminal. They may compromise. They may accept Qisas from the criminal. The State cannot impede, but must to its best, assist them in achieving their object and in appropriately exercising their rights. To that extent section 345 of the Code of Criminal Procedure is deficient, as composition of offences is restricted to a few specified offences and not to all other concerning the person. Section a02, P.P.C. and other similar provisions of Penal Law so far as they ordain [lie infliction of tile sentence, even in those cases where valid compromises have been entered into or the compensation has been received or the accused have been pardoned is, clearly repugnant to the injunctions of Islam. Dr. Riaz‑ul‑Hassan Gillani, Deputy Attorney‑General, Mian M. Ajmal, A.A.‑G. and Ch. Fazal‑e‑Hussain. Advocate‑on‑Record for Appellants (in Shariat Appeal No.l of 1980). M. Saeed Beg, Advocate Supreme Court and M. Qasim ,Imam, Advocate‑on‑Record (absent) for Respondent (in Shariat Appeal No.l of l980). Abdul Hakeem Khan, Senior Advocate Supreme Court: Juris Consult (in Shariat Appeal No.1 of 1980). Dr. Riazul Hassan Gillani, Deputy Attorney‑General and Ch. Fazal‑i?Hussain, Advocate‑on‑Record for Appellant (in Shariat Appeal No.l3 of 1981 ). Raja Had Nawaz Khan, Advocate Supreme Court (absent), M. Nawaz ‑Abbasi, Assistant Advocate‑General, Punjab and Rao M. Yousaf Khan, Advocate‑on‑Record for Respondents Nos.S, 111, 11 and 12 (in Shariat Appeal No. 13 of 1981). Nemo for the Remaining Respondents (in Shariat Appeal No.13 of 1981). Appellant in person (absent) (in Shariat Appeal No.K‑19 of 1980). Dr. Riazul Hassan Gilani, Deputy Attorney‑General and Anwar Ahmed Qadri, Advocate‑on‑Record (absent) for Respondent No.1 (in Shariat Appeal No.K‑19 of 1980), Nemo for the Remaining Respondents (in Shariat Appeal No.K‑19 of 1980). Saeed Beg, Advocate Supreme Court and M. Qasim Imam, Advocate‑on‑Record (absent) for Appellants (m Shariat Appeal No.3 of 1982). Dr. Riazul Hassan Gilani, Dy. Attorney‑General and Anwar Ahmed Qadri, Advocate‑on‑Record (absent) for Respondent No.l (in Shariat Appeal No.3 of 1982). Mian M. Ajmal, A.A.‑G., N.‑W.F.P. for Respondents Nos.2 and 3 (in Shariat Appeal No.3 of 1982). Saeed Beg, Advocate Supreme Court and Jan Muhammad Khan, Advocate‑on‑Record (absent) for Appellants (in Shariat Appeal No.9 of 1984). Dr. Riazul Hassan Gilani, Dy. A.‑G. for Respondent No.l (in Shariat Appeal No.9 of 1984). Mian M. Ajmal, A.A.‑G., N.‑W.F.P. for Respondents Nos.2 and 3 (in Shariat Appeal No.9 of 1984). Saeed Beg, Advocate Supreme Court and Jan Muhammad Khan, Advocate‑on‑Record for .Appellants (in Shariat Appeals Nos.10, 11 and 12 of 1984). Dr. Riazul Hassan Gilani, Deputy A.‑G. for Respondent No.l (in all Appeals). ???????? Mian M. Ajmal, A.A.‑G., N.‑W.F.P. for Respondents Nos.2 and 3 (in all Appeals). Muhammad Bilal, Advocate Supreme Court and Khan Imtiaz Muhammad Khan, Advocate‑on‑Record for Appellant (in Shariat Appeal No.3 of 1985). Dr. Riazul Hassan Gilani, Dy. A.‑G. for Respondent No.l (in Shariat Appeal No.3 of 1985). Nemo for the Remaining Respondents (in Shariat Appeal No:3 of 1985). Saeed Beg, Advocate Supreme Court and Oasim Imam, Advocate‑on‑Record (absent) for Appellants (in Shariat Appeal No.l of 1983). Dr. Riazul Hassan Gilani, Dy. A.‑G. for Respondent No.l (in Shariat Appeal No.1 of 1983). Mian M. Ajmal, A.A.‑G., N: W.F.P. for Respondents Nos.2 and 3 (in Shariat Appeal No.l of 1983). Saeed Beg, Advocate Supreme Court and Jan Muhammad Khan, Advocate‑on‑Record (absent) for Appellant (in Shariat Appeal No.2 of 1986). Dr. Riazul Hassan Gilani, Dy. A.‑G. and Ch. Akhtar Ali, Advocate‑on‑Record for Respondent No.l (in Shariat Appeal No.2 of 1986). Mian M. Ajmal, A.A.‑G., N.‑W.F.P. for Respondents Nos.2 and 3 (in Shariat Appeal No.2 of 1986). Date of hearing: 19th January, 1988. The Court for reasons separately recorded, has unanimously decided that: ??????????????????? (1) Sections 299 to 338 of the Pakistan Penal Code, 1860 which deal with offences against human body are repugnant to the Injunctions of Islam, as they‑‑ (a) do not provide for the Qisas in cases of Qatl‑al‑and (deliberate murder) and Jurooh‑al‑and (deliberately causing hurt) as is prescribed in the Holy Qur'an and Sunnah; (b)? do not provide for Diyat in cases of Shibh‑ul‑and and Khata of both Qatl (murder) and Jurh (hurt) as prescribed in the Holy Qur'an and Sunnah; (c)? do not provide for compromise between the parties on agreed compensation when they make Sulh (compromise) in cases of Oat] and Jurh; (d) do not provide that the offender may be pardoned by the victim in cases of Jurh (hurt), and by the heirs of the victim in cases of Qatl (murder) whereby the Court can only award him a sentence of imprisonment by way of Ta'zir which may not extend to imprisonment for life; (e)? do not exempt a non‑pubert and an insane offender from the sentence of death in cases of murder; and (f)? do not define the different kinds of Oat] and Jurh (murder and hurt) in accordance with their respective punishments prescribed in the Holy Qur'an and Sunnah.

2. Section 1(19 of Pakistan Penal Code, 1860 is repugnant to the Injunctions of Islam in so far as it makes an abettor in case of murder and other offences against human body liable to the same punishment as is prescribed for the murder or for such offences regardless of the various degrees of abetment. 3.?? Section 54 of Pakistan Penal Code and sections 401, 402, 402‑A and 402‑B of the Code of Criminal Procedure arc repugnant to the Injunctions of C Islam in so far as they empower the Central Government or a Provincial Government to commute the sentence of death in a case of Qatl‑al‑and or Jurh?ul‑and or in any other offence violating the Huqooq‑ul‑Ibad. 4.? Section 345 of the Code of Criminal Procedure, 1898 is repugnant to the Injunctions of Islam in so far as it does not include some of the offences against human body in the table of compoundable offences. 5.? Section 381 of the Code of Criminal Procedure, 1898 is repugnant to the Injunctions of Islam in so far as it does not provide that the heirs of the deceased in a case of murder may pardon the offender or enter into a compromise with him even at the last moment before execution of sentence, upon which execution cannot take place. No declaration in respect of section 133 of the Evidence Act is called for as it already stands repealed by the Qanun‑e‑Shahadat, 1984.

7. Sections 337 to 339‑A of the Code of Criminal Procedure are declared to be repugnant to the Injunctions of Islam in so far as they permit tender of pardon to an offender without reference to and without permission of the victim F wherever this is required under the injunctions of Islam in case of Jurh and of the heirs of the victim in cases of Oatl. 8.? Accordingly, it is held that this decision shall take effect from 23rd of March, 1990 whereby the provisions referred to above, to the extent they have been held to be repugnant to the Injunctions of Islam shall cease to have effect.

9. In the light what is stated above, Shariat Appeal No. I of 1980 and Shariat Appeal No. 13 of 1981 are dismissed. Appeal No. 19‑K of 1980 is partly allowed. All other appeals are of personal nature. They are allowed to the extent that section 381 of the Code of Criminal Procedure, 1898 has been declared to be repugnant to the Injunctions of Islam.

10. As for the prayers of personal reliefs. the parties should seek remedy before other forums, in accordance with law. SHAFIUR RAHMAN, J.‑‑I have had benefit and the privilege of perusing with great care the detailed draft judgment prepared by my learned brother Mr. Justice Pir Muhammad Karam Shah. I have the following observations to make:‑‑ (1) Section 133 of the Evidence Act and sections 337 to 339 of the Code of Criminal Procedure prescribe the conditions and the offences for which an offender can be made an approver and the extent and the manner in which his testimony may be utilized at the trial. The situations, the conditions, the offences and the requirements justifying reception of? approver's testimony are all exceptional, bordering on necessity and demands of public policy. The various provisions of the Evidence Act with which its section 133 is to be read establish that whilst it is not illegal to act upon the uncorroborated evidence of an accomplice, it is a rule of prudence so universally followed as to amount almost to a rule of a law that it is unsafe to act upon an evidence of an accomplice unless it is corroborated in material respects so as to implicate the accused. The evidence of approver where alongwith other evidence is found to be satisfactory, it should be sufficient to convict and sentence an offender under Ta'zir, for which according to my learned brother, ample scope exists even where Injunctions of Islam provide for the punishment. (2)??????? At present, and after the impugned judgment of the Federal Shariat Court, the whole of the Evidence Act stands repealed and has been re?enacted as `Qanun‑e‑Shahadat, 1984'. Article 166 of this Order repeals the whole of the Evidence Act. There is, therefore, now left no occasion, at present to strike down Section 133 of the Evidence Act which has ceased to be on the land. The re‑enacted provision about an accomplice is Article 16 of Oanun‑e‑Shahadat which is differently worded. This Article can be struck down only after the proper procedure with regard to it has been followed, as provided in the Constitution. (3)??????? As regards the rigidity in respect of admissibility of evidence and its quality, I have not been able to rind any injunction of the Holy Qur'an and the Sunnah of the Holy Prophet and the one reproduced in the judgment of my learned brother relates to infliction of punishment of Hadd and can on that score be distinguished. In the absence of any such injunction of Islam the test of repugnancy cannot be applied on the basis of what the jurists have evolved as the rule of evidence for convicting a person. My knowledge on the subject indicates that in the matter of Ta'zir, the rules for receiving, appreciating and rejecting evidence can ail be controlled by law adjusted to the situation, to the crime, to the offender and to the social atmosphere in which the laws have to be applied. (4)??????? Under the Anglo‑Saxon Jurisprudence, Society represented by State, holds a direct control over serious offences concerning person and property. The launching of the prosecution, the withdrawal of the prosecution, reprieve and pardon after conviction and sentence by the State and its functionaries are all manifestations of this feature. The victim of the crime or his heirs have no say in the matter. Under the injunctions of Islam this is not so at (cast in respect of offences against person. In Islam the individual victim or his heirs retain from the beginning to the end entire control over the matter including the crime and the criminal. They may not report it. They may not prosecute the offender. They may abandon prosecution of their free‑will. They may pardon the criminal at any stage before the execution of the sentence. They may accept monetary or other compensation to purge the crime and the criminal. They may compromise. They may accept Qisas from the criminal. The State cannot impede, but must to its best, assist them in achieving their object and in appropriately exercising their rights. To that extent section 345 of the Code of Criminal Procedure is deficient, as composition of offences is restricted to a few specified offences and not to all others concerning the person. Section 302, P.P.C. and other similar provisions of Penal Law taken note of so far as they ordain the infliction of the sentence, even in those cases where valid compromises have been entered into or the compensation has been received or the accused have been pardoned is clearly repugnant to the Injunctions of Islam. M.B.A./F‑131/S???????????????????????????????????????????????????????????? Order accordingly.